Com. v. Hawes. D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONTEL HAWES
Appellant No. 216 EDA 2016
Appeal from the PCRA Order Dated January 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010090-2011
BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 29, 2016
Appellant Dontel Hawes appeals pro se from the order dismissing his
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm.
On January 15, 2013, Appellant entered into a negotiated guilty plea
to third degree murder.1 In accordance with the plea negotiations, Appellant
was sentenced to 12½ to 30 years’ incarceration, and his remaining charges
were nolle prossed. N.T., 1/15/13, at 18.
Appellant did not file post-sentence motions or a direct appeal. On
February 7, 2014, he filed a timely pro se PCRA petition that made no
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(c).
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mention of ineffective assistance of Appellant’s trial counsel. On
February 13, 2014, Appellant mailed a pro se Amended PCRA Petition,
alleging for the first time that Appellant’s trial counsel had been ineffective.
See Amended Petition at 2-3. Appellant’s Amended Petition was docketed
on February 21, 2014. Appellant never requested permission from the PCRA
court to supplement or amend his original request for post-conviction relief
to include this ineffectiveness claim.
The PCRA court appointed counsel for Appellant’s PCRA proceeding.
PCRA counsel did not petition to supplement or amend Appellant’s original
PCRA petition. Ultimately, PCRA counsel filed a Turner/Finley2 letter and
motion to withdraw as counsel, averring that Appellant’s PCRA petition had
no merit and that there were no additional issues that could be raised in an
amended PCRA petition.
On December 15, 2014, the PCRA court issued a notice of its intent to
dismiss Appellant’s PCRA petition pursuant to Rule 907 of the Pennsylvania
Rules of Criminal Procedure. Appellant did not file a response to that notice.
On January 14, 2015, the PCRA court granted counsel’s motion to withdraw,
and, on January 21, 2015, the PCRA court dismissed Appellant’s PCRA
petition. Appellant filed a timely appeal to this Court on or about
January 25, 2015, but the Court of Common Pleas’ Clerk of Courts did not
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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record the notice of appeal on the docket. Order, 1/15/16; PCRA Court
Opinion, 5/13/16, at 2. Appellant subsequently filed a PCRA petition asking
the court to reinstate his appellate rights nunc pro tunc, and the court
granted that petition on January 15, 2016. This timely pro se appeal
followed. Id.On appeal, Appellant raises the following issues for our review:
I. [(A)] WHETHER PCRA COUNSEL RENDERED INEFFECTIVE
ASSISTANCE FOR FAILING TO INVESTIGATE AND EXPLORE
THAT THE COMMONWEALTH VIOLATED BRADY V. MARYLAND,
373 U.S. 83 (1963) BY FAILING TO DISCLOSE INDEPENDENT OR
CONSTRUCTIVE KNOWLEDGE OF THE INVESTIGATIONS
SURROUNDING DETECTIVES DOVE AND PITTS, AND [(B)] WAS
TRIAL COUNSEL INEFFECTIVE FOR FAILING TO INVESTIGATE
AND FORMALLY REQUEST ADDITIONAL D[I]SCOVERY WHERE
SUCH WOULD HAVE CHANGED THE OUTCOME OF THIS CASE?
II. WHETHER PCRA COUNSEL RENDERED INEFFECTIVE
ASSISTANCE BY FAILING TO RAISE [A CLAIM THAT]
APPELLANT’S GUILTY PLEA WAS UNLAWFULLY INDUCED WHERE
THE CIRCUMSTANCES OF THIS CASE RENDERED THE PLEA NOT
INTELLIGENTLY OR VOLUNTARILY ENTERED?
Appellant’s Brief at 4. We note that the issues raised in what we have
identified above as I(A) and II both raise for the first time a claim that
Appellant’s PCRA counsel was ineffective.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
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of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We defer to the PCRA court’s findings that are supported in
the record and will not disturb them unless they have no support in the
certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.
2014).
Before reviewing the merits of Appellant’s issues, we must determine
whether they are properly before us. We begin with Issues I(A) and II, each
of which claims ineffectiveness of Appellant’s PCRA counsel. Although
Appellant did not raise an issue regarding his PCRA counsel in his PCRA
petition, he had an opportunity to bring that issue before the PCRA court in
response to the PCRA court’s notice of an intent to dismiss his petition under
Rule 907. The purpose of a Rule 907 pre-dismissal notice is “to allow a
petitioner an opportunity to seek leave to amend his petition and correct any
material defects, see Commonwealth v. Williams, 566 Pa. 553, 782 A.2d
517, 526 (2001), the ultimate goal being to permit merits review by the
PCRA court of potentially arguable claims.” Rykard, 55 A.3d at 1189. The
response to the Rule 907 notice “is an opportunity for a petitioner and/or his
counsel to object to the dismissal and alert the PCRA court of a perceived
error, permitting the court to ‘discern the potential for amendment.’” Id.(quoting Williams, 782 A.2d at 527). The response is also the opportunity
for the petitioner to object to counsel’s effectiveness at the PCRA level.
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Rykard, 55 A.3d at 1189. Accordingly, the Supreme Court has held in
circumstances similar to those in this case that a failure to raise
ineffectiveness of PCRA counsel in response to a Rule 907 notice waives that
claim. Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009).
Our review of the record confirms that Appellant failed to respond to
the PCRA court’s Rule 907 notice at any time before the court dismissed his
petition. Therefore, all of his issues concerning PCRA counsel’s asserted
ineffectiveness are waived. Appellant may not raise those issues for the first
time on appeal. See Commonwealth v. Smith, 121 A.3d 1049, 1055-56
(Pa. Super. 2015), appeal denied, 136 A.3d 981 (Pa. 2016). Accordingly,
Issues I(A) and II in the “Statement of Questions Involved” in Appellant’s
Brief are waived.
As for Appellant’s remaining claim of ineffective assistance of trial
counsel – I(B) in Appellant’s “Statement of Questions Involved” — we find
that the issue also has not been preserved for our review. That issue of trial
counsel’s ineffectiveness was not raised in Appellant’s original PCRA petition,
and neither he nor his PCRA counsel sought leave to add it by an
amendment to that petition. Appellant did file an unauthorized “Amended
Petition” that asserted the ineffectiveness claim, but the Supreme Court of
Pennsylvania has “condemned the unauthorized filing of supplements and
amendments to PCRA petitions, and held that claims raised in such
supplements are subject to waiver.” Commonwealth v. Reid, 99 A.3d
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470, 484 (Pa. 2014) (finding claims raised in unauthorized supplemental
petitions waived despite trial court entertaining and ruling on claims); see
also Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013) (holding that
claim alleging trial counsel’s ineffectiveness is waived because it wasn't
included in PCRA Petition and PCRA court did not give permission to amend
PCRA petition). Because Appellant did not include in his initial PCRA petition
a claim of ineffective assistance of trial counsel, and because Appellant failed
properly to seek the PCRA court’s permission to amend his PCRA petition to
add that claim, Appellant waived appellate review of this remaining
ineffectiveness issue. Id.As Appellant has failed to preserve any issues for our review, we affirm
the order dismissing Appellant’s PCRA petition.
Order affirmed.
Judge Olson joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2016
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